The Volokh Conspiracy

Nice summary of the more critical concerns and some solid depth as well, an informative brief and accessible.

I think it improbable (though not absolutely so), but if Heller goes down badly, in political/ideological terms it will serve to indicate it is long past ramparts time and may well suggest that ramparts, in a more practical, real-world sense, are likely to be seen within the next decade or more. It is sober reflection which suggests that to be the case.

Heller is reflective of some very basic, some very fundamental stuff. Would it have even passed the laugh test prior to 1968? Perhaps, but perhaps only. The long march through the institutions, the welter of deep-seated societal impacts resulting from that long and often mendacious and even malevolent march, reach into the most fundamental substrates society is founded upon. Where the tipping point is I'm not certain, but Heller, wrongly decided, will not merely suggest a yellow flag, it would indicate a red flag demarcation - and decidedly so.

That, not because any type of insurrection should be actively pursued absent other, instigating factors, but rather because other realities are likely to impinge upon a weakened populace. ("Awakened" sleeper cells are merely one such conceivable scenario, and I do stress the term "conceivable" only, as in theoretically, because it simply would not be proper to overly stress something that is not better understood in terms of the number of sleeper cells that exist and in terms of their actual contingent interests and designs.)

Professor O'Shea wrote an excellent summary of the issues in Heller. I have only a handful of minor additional thoughts:

1. Don't be shocked if the Court abrogates Miller outright. That case never would have been taken by the Court today, and its holding rests on the absence of readily-available evidence (the military utility of the short-barrelled "trench gun"). Most importantly given the evident concern in the Heller briefs and at oral argument about machineguns, expressly disavowing the Miller test makes preserving the NFA's and 922(o)'s heavy regulation of machineguns much less problemmatic.

2. Don't be surprised if the Court endorses BOTH individual and collective rights theories of the Second Amendment. The former appears to have at least 5 votes if oral argument is any indication. But the latter was expressly contemplated by the Amendment's preamble, and contrary to popular misimpression, is not entirely mooted by the National Guard Act. Something like 22 states have authorized state militias outside the Guard, and several, such as the Virginia State Defense Force, have active sworn membership and drill under state authority. Were a Federal Government to ever order that authorized state militias be disarmed, the collective rights doctrine would become much more than a purely hypothetical right.

3. As O'Shea suggests, the standard of review is everything. Even though RKBA is an enumerated right, I would be shocked if a plurality explicitly adopted a strict scrutiny standard. Instead, I think the opinion of the Court will one way or another have enough leeway to preserve felon-in-possession laws and the NFA, at least. Argument suggested that not only several Justices, but even Heller's counsel, were squeamish about an outcome that would jeopardize these regulations. Thus, look for a compromise standard, perhaps similar to that advocated by the Solicitor General. In my view, the approach suggested by Justice Roberts at argument - deliberately declining to articulate a standard of review - would be the messiest possible outcome. And frankly, a disappointing cop-out that leaves the toughest question for another day.

4. No matter what the Court holds, in a sense this is only the beginning of the war. There will be years if not decades of follow-on litigation before the full scope of the Second Amendment becomes clear (if ever). Pro-Second Amendment forces cannot become complacent after a Heller "win."

Just one pinhead's opinion.

but I cannot recollect one where the Court denied the existance of a right in which a great majority believed.

Kelo.

The 9th and 10th amendment answers all this questions. But I fear the court is too lost to realize this.

To prevent any spelling flame war, I'll correct that to amendments.

Something else I would be interested in getting ahold of would be whatever records are preserved regarding the district court case in Miller. I have one source that I don't have utmost faith in (John Ross' Unintended Consequences) in which it is claimed that the district court judge owned a BAR in violation of the NFA. Any corrorboration on that item would be very interesting.

I had an interesting thought, and I would love to spur a debate by expressing it.

It has been discussed many times by commenters on this blog whether there are "close cases" where a judge's ideology--intentionally or unintentionally--affects their vote in a given case. I feel strongly that this does happen and that often it is unavoidable, and I feel that the Heller case is a great example of when this could happen.

I would love to hear what others think.

Soronel Haetir, was that actually claimed in Unintended Consequences? I remember the judge using that as an example when questioning the prosecutor.

Two online links concerning Miller come to mind:

http://volokh.com/posts/1179865714
http://www.hoboes.com

I have two brief thoughts on the subject. First, one other important point that Prof. O'Shea does not appear to mention (not that he was trying to mention them all!) is how the justices on D.C.'s side will square their anti-gun-rights analysis with the unenumerated rights jurisprudence of Griswold, Roe, Lawrence, etc. Justices who will scramble to find leftist "rights" not in the Constitution will look pretty foolish denying rights conservatives favor that are expressly established in the Constitution.

Second, I doubt the Court will apply a specific standard of review. I expect the Court to say that the laws in question would violate any potentially applicable standard of review and let that question of standard of review percolate in the lower courts for a while. I hope that I'm wrong, though, and I hope the Court applies strict scrutiny.

I don't buy O'Shea's separation of private versus civic purposes. The supposed distinction is actually one of the ploys by which antigun propagandists have sought to undermine the Second Amendment. Deterring crime is as surely as "civic: as deterring tyranny. Why should defending oneself and one's family or coming to the aid of neighbors under attack by a mass murderer be split off into some separate category that might be downplayed or dismissed, relative to, say, manning the barricades against the redcoats?

As far as I am aware, nothing is preventing the court from holding onto this one until October

How about Monday, 3 November 2008, the day before the election?

Cornellian,

Where does the U.S. Constitution forbid the taking of private property by the government for private use without any compensation being paid at all? (Hint: nowhere.)

Cornellian,
Where does the U.S. Constitution forbid the taking of private property by the government for private use without any compensation being paid at all? (Hint: nowhere.)

I've made that same point myself more than once, but I'm not the one here complaining about unelected judges "inventing" rights not found in the text of the Constitution.

Dave Hardy: Consider the House Report #22 issued by the House Judiciary Committee on Jan 30, 1871, written by Bingham himself:

The clause of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two... the words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.

One would have to a real dishonest looney to force construct the 14th to make the 2A an enforceable protective individual right against either state or municipal legislation. It simply lacks any affirmative text to allow for this.

Dear Brett Bellmore: Please note the date of the committee report, January 30, 1871. The 14th amendment was adopted on July 9, 1868. It is impossible for Bingham to had been speaking of an earlier version of 14th amendment.

"Or invented one that never existed before in history, treating foreign enemy combatants as if they were American citizens and accused of mere routine domestic criminality?"

"Where in the Constitution does it say the writ of habeas corpus is available only to citizens?" Cornellian

With little comment, excepting to note it can be helpful to take notable realities into account, an excerpt from Scalia's dissent in the recent Boumediene decision, quoting more extensively and without ellipses, emphases added:

"At least 30 of those [Guantanamo] prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan &Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

"These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

"But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their IT, enabling more of them to evade capture and continue their atrocities. See id., at 15.

"And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:"

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine - through democratic means - how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).¹

"Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive - both political branches - have determined that limiting the role captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act . . . represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

"But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails ..."

Then, later, concisely noting both real-world implications together with the most salient legal reflection:

"The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today."

Put differently still, how does Kennedy's essentially "un-hinged" decision allow for a substantive, reality bound and genuinely sustaining principle to be followed in the future? It is no mere coincidence that Scalia's dissent very much is concerned with both legal precedent and more salient realities - while Kennedy's majority decision in no part very serioiusly asks questions concerning those realities (beyond what can be argued is a token acknowledgement), much less grappling with them in conjunction with his legal analysis and resulting decision.

This is relevant not because Boumediene was previously alluded to so much as because of 1) the makeup of the court and the election in Nov., 2) the potentially pivotal quality of aspects of Heller, both immediately and in terms of precedent and 3) the increasing tendency not merely in the general direction of the usurpation of the democratic/political process and balance of powers (executive and legislative branches, as noted above, not to mention "We the people ..." reflecting the singular, undergirding tenet of the Constitution) - but likewise in the direction of the essentially "un-hinged" quality reflected in that abrogating tendency, the usurpation of the demos by the judiciary and by elites in broader terms as well (cf., the E.U.'s recent Lisbon Treaty, defeated, but barely and despite the machinations of their own usurping elites).

Dear Brett Bellmore: You omitted an important part of Howard's speech following his above remarks: "all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation."

He is talking about citizens of the United States (read newly freed blacks), not citizens of a state under their own laws. He is also the only one who suggested the privileges and immunities could include the first eight amendments, but as most know, he did not endorse this line of speculation with his famous words “it would be a curious question to solve what are the privileges and immunities of citizens” and “it would be a somewhat barren discussion.”

The Senate Judiciary concluded the same thing as did the House judiciary one year later in a senate report.

Senate judiciary chairman, Lyman Trumbull said the P&I's under the 14th were exactly the same under the original constitution. In 1868 Howard agreed, making clear Georgia was bound under the 14th to respect the same P&I's of citizens of other states as it grants to its own citizens under its own state constitution. Only when a state a denies the same P&I's to citizens of other states can a citizens seek redress in federal court.

Bingham wasn't kidding when he said "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

Michael B: C. Norris - if the hand "misbehaves," cut off the foot to spite the hand?

No. Hit the thumb of the "misbehaving hand" with a hammer by the other hand to get the errant hand's attention. You obviously misunderstood my post.

J. Aldridge:

Dear Brett Bellmore: You omitted an important part of Howard's speech following his above remarks: "all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation."

Howard was talking here about the situation before the adoption of the 14th Amendment. He went on to say, of the 14th Amendment: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."

J. Aldridge:

Where do you get that from? Immediately before the sentence I quoted, Howard noted that "the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year." He went on to say (as I quoted above) that therefore the 14th Amendment would compel the states to respect those fundamental rights. He clearly thought the GA Constitution (along with the other state constitutions) provided insufficient protection.

Later in the speech, he said: ""I look upon the first section, taken in connection with the fifth, as very important. It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction." Georgia's own citizens are also citizens of the United States. There is no indication here that Howard did not expect the 14th Amendment to protect Georgia's own citizens from the Georgia state government, should it attempt to violate their rights as U.S. citizens.